David Burks v. Board of Trustees of the Lexington-Fayette Urban County Government's Police and Firefighter's Retirement Fund ( 2023 )

RENDERED: MARCH 17, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0370-MR
DAVID BURKS APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 21-CI-01593
BOARD OF TRUSTEES OF THE
LEXINGTON-FAYETTE URBAN
COUNTY GOVERNMENT’S POLICE
AND FIREFIGHTER’S RETIREMENT
FUND APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; CALDWELL AND GOODWINE,
JUDGES.
GOODWINE, JUDGE: David Burks (“Burks”) appeals from an opinion and order
of the Fayette Circuit Court affirming the denial of his petition for disability
benefits by the Board of Trustees of the Lexington-Fayette Urban County
Government Policemen’s and Firefighter’s Retirement Fund (“Board”). After
careful review, finding no error, we affirm.
Burks was hired by the Lexington-Fayette Urban County Government
(“LFUCG”) Division of Police as a police officer in 2006. On April 22, 2020,
Burks applied for total and permanent occupational disability. In his application,
Burks claimed he had cumulative back trauma dating back to December 27, 2008,
when he suffered an injury to his back when he fell to the ground while escorting a
handcuffed suspect who attempted to pull away. Burks did not seek any medical
treatment for that injury.
However, about ten years after the 2008 injury, Burks sought workers’
compensation benefits for back pain. He attributed the pain to wearing a duty belt
that holds the tools police officers must carry each day. For nearly a year, from
2018-2019, Burks did not wear a duty belt. LFUCG settled the workers’
compensation claim, and he was moved to a modified duty position in 2019 to
accommodate his doctor’s restrictions related to his back pain.
On April 22, 2020, Burks applied to the Board seeking occupational
disability retirement benefits. He claimed working as a police officer caused
cumulative trauma to his back that started when he was injured in December 2008
and continued with the daily wearing of the duty belt.
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After Burks submitted his application, the Board voted to send Burks
to two orthopedic surgeons to determine if he qualified for benefits for his back
pain under KRS1 67A.480(1). First, Dr. Gary T. Bray evaluated Burks and
determined he was totally and permanently disabled from performing his duties as
a police officer and assigned a disability rating of two percent of the whole body.
However, Dr. Bray found his disability attributable to two non-occupational
conditions, ulcerative colitis and seronegative spondylitic arthropathy. Second, Dr.
Gregory Grau evaluated Burks and determined he met the criteria for total and
permanent occupational disability due to L4-5 stenosis related to his 2008 work-
related back injury. Dr. Grau assigned a twelve percent impairment rating.
Because Dr. Bray and Dr. Grau provided conflicting evaluations of
Burks’ condition, the Board voted to send Burks to a third doctor. Dr. Michael
Best evaluated Burks and concluded he did not have a disability and was
physically capable of performing the duties of a police officer.
Because the Board did not have a consensus from its selected
physicians as to whether Burks was disabled, the Board denied Burks’ application
of occupational disability benefits.
Burks moved for rehearing. During Burks’ counsel’s opening
statement, he conceded that Burks had a pre-existing degenerative disc disease,
1
Kentucky Revised Statutes.
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which was congenital in nature and predated his employment. Burks presented
reports from four doctors in support of his position that he suffered from duty-
prohibiting cumulative trauma to his back. First, Dr. David Burke, an orthopedist,
determined Burks had a “cumulative trauma condition of the back which is
attributable to wearing his gun belt combined with prolonged sitting and
entering/existing [sic] a police cruiser repeatedly during his employment.” Board’s
May 12, 2021 Order at 2. Dr. Burke concluded Burks could safely perform his
duties as a police officer and assigned an impairment rating of 7%. However, on
remand from the circuit court, the Board entered supplemental findings referencing
Dr. Burke’s supplemental report concluding Burks was unable to safely return to
the physical duties of a police officer.
Second, Dr. Anthony J. McEldowney, Burks’ treating physician,
determined Burks suffered “from cumulative back trauma related to his police
duties that are not attributable to spondyloarthropathy, and that he cannot safely
perform the physical duties of a police officer.” Id.
Third, Dr. Thomas Howard, Burks’ treating rheumatologist, opined
Burks’ “back pain is likely mechanical in nature and not attributable to
inflammatory change.” Id.
Fourth, Dr. James Owen, an occupational medicine physician who
first evaluated Burks after his workers’ compensation application, opined Burks
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had a permanent occupational disability caused by his occupation. Additionally,
Burks submitted “materials addressing low back pain in police officers and
correlation to the wearing of a patrol duty belt.” Id. Following the rehearing, the
Board entered a final order denying Burks’ application for total and permanent
disability.
Burks then filed a petition for judicial review with the Fayette Circuit
Court. The circuit court heard Burks’ petition and partially remanded the case for
the Board to clarify what evidence it considered.
After filing his petition for judicial review, Burks applied for non-
occupational disability retirement benefits. The Board granted his application on
July 14, 2021.
On remand, the Board issued supplemental findings of fact explaining
it considered all evidence Burks offered. After a rehearing, the circuit court
affirmed the Board’s decision, and this appeal followed.
On appeal, Burks argues: (1) substantial evidence does not support
the Board’s denial of his application for occupational disability retirement; and (2)
the Board’s findings of fact failed to consider the evidence he presented,
specifically Dr. Howard’s opinion.
“Typically, judicial review of an administrative action is concerned
with whether the agency action was arbitrary.” Smith v. Teachers’ Ret. Sys. of
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Kentucky, 515 S.W.3d 672, 675 (Ky. App. 2017) (citation omitted). “Arbitrariness
may arise when an agency: (1) takes an action in excess of granted powers, (2)
fails to afford a party procedural due process, or (3) makes a determination not
supported by substantial evidence.” Id. (citation omitted). “A reviewing court
assesses whether the agency correctly applied the law under a de novo standard of
review. If the court finds that the agency applied the correct rule of law to facts
supported by substantial evidence, the court must affirm the agency’s final
order.” Id. (internal citations omitted). Additionally, “[w]here the fact-finder’s
decision is to deny relief to the party with the burden of proof or persuasion, the
issue on appeal is whether the evidence in that party’s favor is so compelling that
no reasonable person could have failed to be persuaded by it.” McManus v.
Kentucky Retirement Systems, 124 S.W.3d 454, 458 (Ky. App. 2003) (citation
omitted).
Burks argues substantial evidence does not support the Board’s
decision to deny Burks’ occupational disability retirement, and the Board ignored
his evidence, specifically the opinion of Dr. Howard. As both of these arguments
are evidentiary issues, we address them in tandem. Burks asserts five of the seven
doctors who gave reports on his condition opined that he suffered from a
permanent disability due to his work-related activities. He argues the Board’s two
doctors whose opinions did not support a finding of an occupational disability were
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conflicting. Dr. Bray determined Burks was disabled, but he attributed the
disability to non-work-related events, while Dr. Best determined Burks was not
disabled. He briefly attacks the opinions of the physicians selected by the Board,
but he does not explain why his higher quantity of medical evidence is more
credible than opinions of the doctors selected by the Board. In sum, Burks argues
his position is supported by a greater number of doctors, and the Board ignored the
evidence he presented.
The Board points out that Burks misstates the relevant considerations
for us to consider on appeal. Instead of focusing on the sufficiency and accuracy
of the Board’s evidence, Burks attempts to attack the credibility of the physicians
as witnesses while ignoring the flaws in his own evidence.
“The test of substantiality of evidence is whether when taken alone or
in the light of all the evidence it has sufficient probative value to induce conviction
in the minds of reasonable men.” Kentucky State Racing Commission v. Fuller,
481 S.W.2d 298, 308 (Ky. 1972) (citation omitted). “The rule in Kentucky is that
if there is substantial evidence in the record to support an agency’s findings, the
findings will be upheld, even though there may be conflicting evidence in the
record.” Kentucky Commission on Human Rights v. Fraser, 625 S.W.2d 852, 856
(Ky. 1981) (citation omitted). “In its role as a finder of fact, an administrative
agency is afforded great latitude in its evaluation of the evidence heard and the
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credibility of witnesses, including its findings and conclusions of fact.” Aubrey v.
Office of Attorney General, 994 S.W.2d 516, 519 (Ky. App. 1998) (citation
omitted).
We give great deference to the Board in its fact-finding role. Contrary
to Burks’ assertion, the Board did consider “other evidence as shall have been
presented to it by the member” under KRS 67A.480(3). The findings of fact in the
Board’s final order includes a summary of the evidence Burks presented on
rehearing. On remand from the circuit court, the Board supplemented its findings
of fact with Dr. Burke’s supplemental report and concluded its decision to deny
Burks’ application for occupational disability was unchanged. The Board clearly
considered Burks’ evidence and determined his evidence was less credible than the
reports of the physicians selected by the Board.
Additionally, Burks’ evidence was not so compelling to persuade any
reasonable person. McManus, 124 S.W.3d at 458. Burks argues his evidence was
sufficiently compelling to persuade any reasonable person because the number of
medical opinions he presented that he has a work-related disability outweighs the
number of opinions that he does not have a work-related disability. However, the
relevant consideration is the quality of the evidence presented and not the quantity.
In its Appellee Brief, the Board addresses Burks’ evidence at his
rehearing in four categories: (1) updated opinions from physicians he retained to
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support his 2019 workers’ compensation application; (2) opinions from his treating
physicians; (3) academic sources; and (4) medical records from his treating
physicians. The Board points out that Burks’ evidence omitted critical facts,
contained inconsistencies, and lacked objective medical support.
First, Dr. Burke and Dr. Owen first examined Burks in 2019 to
support his workers’ compensation application and produced supplemental reports
for his 2021 disability application. Burks moved to a modified duty position after
each doctor gave their initial opinions. In 2019, they both found Burks’ occupation
caused his disability. However, neither doctor commented on the change in his job
conditions or how the modification of duty should have affected the progress of his
disability.
Second, opinions from Burks’ treating physicians were inconsistent,
lacked objective medical support, or failed to address key facts for the Board. Dr.
McEldowney, an orthopedic surgeon, testified at the rehearing. Dr. McEldowney
admitted that Burks has a rheumatological condition that could potentially damage
the spine. Dr. McEldowney criticized Dr. Bray, also an orthopedist, for giving an
opinion about rheumatological conditions. However, Dr. McEldowney gave a
conflicting medical opinion that the disability was not caused by the same
rheumatological condition. Furthermore, Dr. McEldowney provided no objective
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medical evidence linking Burks’ disability to his occupational duties and instead
relied on Burks’ self-reporting.
Dr. Howard opined Burks’ rheumatological condition did not cause
his back pain, but he did not determine what caused Burks’ disability.
None of Burks’ evidence addressed why his condition worsened
despite not wearing a gun belt for approximately a year and his placement on
modified duty in 2019.
Third, academic sources did not provide objective medical support.
Though academic sources provide theories for why officers who wear duty belts
could experience pain, they do not objectively link Burks’ back pain to his
occupational duties.
Fourth, Burks’ medical records were inconsistent. Dr. Best reviewed
Burks’ medical records in his independent medical evaluation. Specifically, Dr.
Best noted that records of Gregory Snider, M.D. from 2019 stated Burks’ low back
pain was consistent with what would be expected with natural aging. The medical
records from Dr. Snider clearly contradict Dr. McEldowney’s and Dr. Howard’s
opinions. Thus, based on our review of the record, the Board’s opinion is
supported by substantial evidence, the Board clearly considered Burks’ evidence,
and Burks failed to prove his burden on appeal that his evidence “is so compelling
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that no reasonable person could have failed to be persuaded by it.” McManus, 124
S.W.3d at 458.
In its Appellee Brief, the Board argues Burks’ acceptance of non-
occupational disability retirement bars this action under the election of remedies
doctrine. There is no clear Kentucky case law addressing this issue. In a 1995
unpublished opinion, this Court “held that a retired police officer who was
receiving a pension based on age and seniority was not precluded from seeking a
disability benefit if there was a delayed manifestation of a job-related injury.”
Spears v. Board of Trustees of Lexington-Fayette Urban Cnty. Government
Policemen’s and Firefighters’ Retirement Fund, 583 S.W.3d 37, 41 (Ky. App.
2018) (discussing Board of Trustees of Policemens’ and Firefighters’ Retirement
Fund of Lexington-Fayette Urban Cnty. Government v. Karle W. Franklin, No. 94-
CA-001147-MR, 1995 WL 385148 (Ky. App. Jun. 30, 1995)). In Spears, this
Court declined to apply Franklin because it has no precedential or persuasive value
and was factually distinguishable. Burks’ case is also factually distinguishable
from Franklin and Spears. Though we understand the Board’s interest in a ruling
on this issue, Burks’ appeal fails on the merits of his arguments. Thus, we decline
to determine whether Burks’ acceptance of non-occupational disability retirement
after occupational disability retirement was denied bars him from seeking to
change the type of disability retirement he receives.
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For the foregoing reasons, we affirm the order of the Fayette Circuit
Court affirming the Board’s decision.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Donald R. Todd Brittany Griffin Smith
Lexington, Kentucky Lexington, Kentucky
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